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THE BUSINESS OF ADHESIVES AND SEALANTS: Industry Braces for Possible New Labor Law

Many adhesives industry workers are likely to feel new pressure to join a union whether or not the Employee Free Choice Act, which passed the full House of Representatives earlier this year, becomes law.

Pro-union
groups have been trumpeting the notion that 60 million Americans would join a
union if they could, nearly quadrupling the number of current union workers.
Many adhesives industry workers, and others, are likely to feel new pressure to
join a union whether or not the Employee Free Choice Act, which passed the full
House of Representatives on March 1, becomes law this year.

Should
the EFCA pass, it would fundamentally amend the National Labor Relations Act,
which has guided the way union organizing campaigns and elections have been run
for more than 70 years. Most notably, the EFCA would change the process by
which unions organize and the way that first contracts are negotiated, starting
by doing away with the secret-ballot elections that ensure employee confidentiality
in union organizing.

Doing Away with Secret Ballots

Under the current system,
employees can schedule a vote for union representation if they show the
National Labor Relations Board - through signed authorization cards - that 30%
of potential members want union representation. Then, the NLRB conducts a
secret-ballot election. If more than 50% of eligible employees vote for union
representation, the union gets in. But unions only win about half the time in
elections.

The current system allows workers to express their opinions privately and
confidentially, and gives employers time to present workers with the facts
about unions. Under the proposed bill,
the secret ballot would be replaced by a “card check” system. These cards are
often signed in the presence of a union organizer or a pro-union coworker,
which may be the result of harassment or intimidation. If 50% of the employees sign the cards, the
union is in.

While Sen. Edward Kennedy (D-MA) has said the bill will add “real teeth in the
law by strengthening the penalties for discrimination against workers who favor
a union,” it includes some worrisome aspects, even for employees. Workers may
not be able to obtain the information they need to make an informed choice
about whether to unionize, and to express that choice in private, without fear
of coercion, threats or retribution, as evidenced by the fact that unions win
only a little more than 50% of secret ballot elections.

In fact, many Democrats who support the bill - including House sponsor George
Miller from California - have previously expressed this exact concern. A 2001
letter, sent by Rep. Miller and 15 other members of Congress to Mexican
government officials, said, “We feel that the secret ballot is absolutely
necessary in order to ensure that workers are not intimidated into voting for a
union they might not otherwise choose.”

The U.S. Chamber of Commerce has spoken out repeatedly against the card check
system. In a Jan. 4 letter to members of Congress, Bruce Josten, executive vice
president at the Chamber, pointed to a 7th Circuit Court of Appeals opinion
that found workers may sign authorization cards in union elections to avoid
offending the person who has asked them to sign it or to get that “person off
their back,” rather than out of a genuine interest in joining the union.

“Unions are now emphasizing the card-check process in their organizing drives,
not because they do not win secret ballot elections - they win over 50% - but
because it eliminates any chance of losing,” Josten wrote. “In addition, as an
open-ended process, they can keep their campaign going as long as necessary,
rather than resolve the issue on a specific date with an election.”

Arbitrating a First Contract

While the possibility of
doing away with secret-ballot elections and replacing them with a card-check
system is getting most of the headlines, the EFCA would also alter the way
first contracts are negotiated. The result could be even more troublesome for
employers and workers alike.

Negotiating a first contract between management and a new union is a delicate,
time-consuming process. In fact, about half of all employers and unions have
failed to reach a first contract within two years of the union’s formation.
Under the current law, as long as both parties are acting in good faith, it can
take as long as necessary to hammer out an agreement.

But that process of patient, good-faith negotiations would no longer be the
case under the EFCA. Employers and unions would not have the luxury of time to
work out a new contract in a pressure-free environment. Under the bill, if a
union is certified and it cannot reach an agreement with the employer after
only 90 days, either party can call in the Federal Mediation and Conciliation
Service, the government agency that assists in the mediation of labor disputes
when contract negotiations become stalled. If, with the assistance of a
mediator, an agreement still hasn’t been reached in 30 days, the matter can be
sent into compulsory arbitration. The arbitration panel or single arbitrator
will have the right to impose a collective bargaining agreement that will be
binding on the employer and the union for two years.

Knowing that binding arbitration is required, unions may start out contract
negotiations with a broader agenda and a less flexible attitude. We expect most
first contract negotiations to end up with arbitrators, who will be in the
unique position to choose language from either party or create provisions of
their own. Moreover, arbitrators’ decisions on first contract terms may not
even be subject to legal review, leaving employers and workers with little
recourse against a decision that may ultimately have terrible consequences.

Other Provisions

The
Employee Free Choice Act would also increase civil penalties up to $20,000 per
violation against employers who have been found to violate employees’ rights
during an organizing campaign. The bill would require the National Labor
Relations Board to award liquidated damages in the amount of two times any back
pay found due and owing, and would also prioritize NLRB investigations of
unfair labor practice charges that an employer allegedly commits during an
organizing campaign, with mandatory federal injunctions if a violation is
found.

The Battle

The battle over EFCA in the
Senate, where Democrats have only a slight majority, could be more intense than
the House; however, Sen. Kennedy, who authored a version of the bill that was
introduced in the last Congress, has vowed to “play offense” for it. A
Presidential veto has already been promised, but passage of the law, even if
only by the House, is symbolic: it sets up labor’s litmus test for the 2008
elections.

Many Democrats are dependent on unions to fund their election bids, and unions
are certain to elicit promises in exchange for their money. Should Democrats
retain Congress and gain the presidency, the unions will have already bought
enough votes to ensure passage. (This is likely why at least 15 members of
congress have flipped on this issue since their letter to Mexican officials in
2001.) For the unions, who have watched
union membership drop from about 35% of the work force to less than 8% of the
private workforce, this is their chance to increase membership as well as dues.

The U.S. Chamber of Commerce is urging Congress to see past the emotional
aspects of the proposed legislation. “Reliance on stale 1930s rhetoric that
falsely castigates employers will only perpetuate organized labor’s current
membership difficulties,” wrote Josten in his letter to members of the House
Education and Labor Committee. “The answer to organized labor’s failure to get
more members lies in developing an agenda and message that is relevant and
attractive to the modern workforce, not in subverting proven election
procedures that protect an employee’s right to vote for a union in secret, free
from coercion.”

Links

Richard
D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and
employment firm based in Houston.
He has been at the forefront of labor and employment law for over 30 years,
including stints with the U.S. Department of Labor and the National Labor
Relations Board. Rick is a prolific writer on labor and employment law, and
conducts frequent seminars to client companies and trade associations across
the country. Questions or comments can be addressed to Rick at (281) 833-2200
or via e-mail at ralaniz@alaniz-schraeder.com .

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